Tuesday, March 21, 2017

New Mexico lags in guardianship reform

The New Mexico Administrative Office of the Courts reported in a 2009
legislative analysis “that there is no system in place in New Mexico to
assure effective oversight and monitoring of court-appointed guardians.”

Four years later, another legislative analysis found that
conservatorships and guardianships were becoming more common, but “in
New Mexico, there is limited regulation of what is known as ‘corporate
guardianship,’ ” which involves court appointment of a for-profit or
not-for-profit entity that is paid to be the legal guardian – either
from the ward’s assets or by the state.

Little has changed since
then, as New Mexico lags behind other states, including Texas and
California, that have made reform of the system a top priority.

“We are focused on making sure that these people are protected, and
it’s a big issue, a hot topic all throughout Texas,” said Jeff Rinard,
guardianship certification program director in Texas.

“Nationwide, it’s a
big deal, especially as the population ages.”

But in New Mexico,
which has one of the most secretive guardianship/conservatorship systems
in the nation, the state doesn’t know how many people are living under a
court-approved guardianship or conservatorship.

In a special
project funded two years ago by the Legislature for the 2nd Judicial
District, the Albuquerque-area court identified about 6,000 “active”
guardianship or conservatorship cases in Bernalillo County alone, some
dating back to the early 1950s. Two special masters have been
spot-checking cases and have made home visits to find out if wards are
OK and to check their living conditions – if they are still alive.

The
rest of the state? State court officials say the courts’ computer
system can only show the number of guardianship cases that have been
active since 2016, but efforts are underway to improve tracking of cases
prior to that time.

No records

A judge in New Mexico
typically sets a 30-minute closed hearing to make a potentially
life-changing, and often irrevocable, decision on whether to place an
allegedly incapacitated person in the hands of a family member guardian
or guardianship firm.

If the request is granted, based on reports
presented to the court, the incapacitated person is stripped of
virtually all his or her rights, with the guardian/conservator assuming
authority to make decisions on every aspect of that person’s life and
finances.

The guardianships break down into three general categories:

• Cases in which a family member is appointed guardian, which account for the vast majority.

•
Cases in which a for-profit or not-for-profit guardian is appointed for
someone with few assets and is paid by the state – $3,650 a year for
each incapacitated person.

• Cases in which the allegedly
incapacitated person has assets and a commercial guardian/conservator is
appointed and paid from the assets, often charging hundreds of dollars
an hour and hiring others to provide services that could include help
with personal hygiene, grocery shopping and even dog walking.
Conservators have virtually total control over financial decisions.

Family
members interviewed by the Journal have complained that commercial
guardians/conservators ignored the incapacitated person and wasted
estate assets against the wishes of that person and family members.

They said efforts to complain to the judge who made the appointment are often futile.

Among their complaints: Guardians and conservators can charge excessive fees with little justification required by the court.

And
they say a family member who hires a lawyer and files a petition for
guardianship is in the driver’s seat from then on, partly because judges
typically appoint that lawyer’s recommended team to advise the court
whether to grant a guardianship. That practice has been rejected, for
example, in California, where judges use a court investigator on staff
to investigate the need for a guardian.

A 2013 legislative
analysis said there is no specific mechanism in New Mexico for
complaints against corporate guardians who don’t have contracts with the
state Office of Guardianship. Texas has overhauled its system to put
licensure for guardians in place, along with a complaint system.

The Office of Guardianship, which contracts with for-profit and
not-for-profit firms to provide guardian or conservator services to
low-income individuals, does have the authority to investigate
complaints against its guardian contractors.

But the 2013
legislative analysis said that because the office works closely with its
contractors, “there is an inherent conflict of interest.”

And what about the complaints the office has investigated?

Records
custodian Justin Moore told the Journal: “The Office of Guardianship
has no public records showing the number of complaints filed against any
particular contractor. Moreover, such complaints are exempt from
inspection because they related to “client complaints against a
contractor,” which he said are exempt from public inspection.

The
state’s Adult Protective Services Department investigates complaints
against guardians and makes referrals to the state Attorney General’s
office, but a spokesman last week said the agency’s tracking doesn’t
distinguish how many referrals have involved guardians.

Reforms elsewhere

A
federal Governmental Accountability Office report in 2011 noted that
many states reported having limited resources for monitoring guardians.
But that didn’t stop some, including Delaware and Texas, from recruiting
volunteers to help oversee guardians.

Delaware officials reported
that their volunteers serve as liaisons between guardians and the
courts, visit guardians and wards, and report to court officials about
once every six months. (Click to Continue)

3 comments:

F. Simms
said...

The articles in the Albuquerque Journal have been shocking about guardianship practices in New Mexico. I think if a journalist put all states in a hat and drew out a state at random and focused on reporting problems of that state, those reports would be just as shocking. This is a national problem and I appreciate the hard work NASGA is doing to raise awareness and legislate to fix it.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

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